Khoshi Yadav v. State Of Bihar — 1999 DIGILAW 532 (PAT)

Judgment N.Pandey, J. 1. This appeal has been directed against the judgment in Sessions Trial No. 78 of 1980 whereby all the appellants have been held guilty for the murder of Shard a Devi and accordingly convicted and sentenced to undergo rigorous imprisonment for life under Secs. 302/149 and also under Sec. 201 of the Indian Penal Code. But, the sentences are to run concurrently. 2. Broadly stated the case of the prosecution was that deceased Sharda Devi was married to appellant Ramji Yadav. As there was allegation of torture and ill - treatment against appellant Ramji Yadav, the informant made several efforts to take his sister to his house but could not succeed. It is alleged that on 30-8-1975 at about 5 p.m., while the informant was at his house. PW 3, Baleshwar Yadav informed Wm that all the accused-persons committed murder of his sister Sharda Devi last night by means of pistol and thereafter her body was cut into pieces by sword and ultimately cremated. The informant along with co-villagers immediately rushed to the house of the appellants, but on inquiry they became angry and threatened to assault him. The informant got the matter enquired from the villagers and ultimately on 2- 9-1975 lodged the First Information Report. In the meantime, one of the villagers Bodh Narayan Prasad found the dead body of a young woman lying in his maize field. He soon thereafter, submitted a written report before the officer-in-charge, which was recorded as sanha No. 88, dated 4-9-1975. On getting information about recovery of the dead body, one of the brothers of the deceased Bhola Yadav (PW 9) reached the spot and identified as his sister. The Police took up investigation and having found the case true, submitted charge - sheet under Secs. 302, IPC and 27 of the Arms Act, against appellant Ramji Yadav and against the remaining accused persons under Secs. 302/149 and Sec. 201, IPC. The case was thereafter, after due observance of necessary formalities and taking cognizance, etc., committed to the Court of Sessions. 3. The defence of the appellants was total denial. According to them, Sharda Devi died of cholera and her body was cremated at Bakhtiyarpur on the bank of river Ganga. 4. The prosecution examined altogether 11 witnesses to prove the charges. 3. The defence of the appellants was total denial. According to them, Sharda Devi died of cholera and her body was cremated at Bakhtiyarpur on the bank of river Ganga. 4. The prosecution examined altogether 11 witnesses to prove the charges. The defence had also examined four witnesses to establish that death of Sharda Devi was not homicidal but, on account of cholera. It may be mentioned that out of 11 witnesses PWs 1 and 3 were declared hostile whereas, PWs 2 and 4 were tendered. PWs 5 and 6 are formal witnesses and proved the First Information Report. PW 8 is a villager whereas; PW 9 Bhola Yadav is the brother of the deceased, who had identified the dead body of Sharda Devi in the maize field. PW 7, the informant, is yet another brother of the deceased, who had narrated the incident about cruelty and also disclosed the prosecution story on getting information from Baleshwar Yadav, a resident of the same village. PW 11 is Dr. Sheonandan Prasad, who had conducted autopsy and found the death of Sharda Devi homicidal whereas, the last witness PW 10 is the Investigating Officer. 5. Before dealing with the arguments of the learned Counsel and the prosecution witnesses, etc. it would be relevant to mention that undisputedly deceased Sharda Devi was the wife of appellant Ramji Yadav and at the relevant time residing with him. The relationship between the appellants and the deceased was strained because of the ill - treatment by the husband. This is also not in dispute that death of Sharda Devi was homicidal because of the injuries, which the doctor had discovered on the deceased at the time of autopsy. It further appears that, no information with regard to death of the deceased was reported to the father of the deceased. It would also be significant to note that on behalf of the defence, a specific plea was taken. Sharda Devi died of cholera and ultimately cremated at the burning ghat. It was in fact when the dead body was I recovered from the maize field and identified by PW 9, the case took a new dimension and it was ultimately proved that the alibi of the accused-persons was totally false to hush up the real prosecution story. 6. Sharda Devi died of cholera and ultimately cremated at the burning ghat. It was in fact when the dead body was I recovered from the maize field and identified by PW 9, the case took a new dimension and it was ultimately proved that the alibi of the accused-persons was totally false to hush up the real prosecution story. 6. From the materials on record and perusal of the evidence, it would appear that there is no eye - witness to the occurrence. The Trial Court, therefore had to record conviction against these appellants purely on the basis of circumstantial evidence. 7. Learned Counsel for the appellants contended that the trial Court completely over-looked to see that from the evidence of the defence witnesses it was clear that Sharda Devi died of cholera and cremated at the burning ghat. The dead body, which was recovered from the maize, field belonged to a different lady but to implicate these appellants. PW 9. Bhola Yadav was examined to prove that it was the dead body of his sister Sharda Devi. He further contended that, the occurrence in this case as alleged took place on 31-8-1975 whereas the dead body of the lady was recovered from the maize field on 3-9- 1975. From the post-mortem report and the evidence of the doctor it would appear that the deceased had as many as eight incised and penetrating wounds besides mark of scratching of the skin etc. Therefore in view of such injuries it was not possible for PW 9 to identify the lady after about 3-4 days of the occurrence. 8. He further contended that from the statement of the informant in the First Information. Report it would appear that death of Sharda Devi took place on account of firing of pistol. There is no allegation of causing incised or penetrating wounds. The trial Court has also disbelieved the allegation of firing. Etc. Therefore the first part of the prosecution version having failed it was not proper for the trial Court to convict the appellants /on the basis of the story which was subsequently cooked up. 9. The informant on the basis of the information given by Baleshwar Yadav had disclosed the cause of death by fire -arm injury. He had also mentioned that the dead body was cut into pieces and cremated. 9. The informant on the basis of the information given by Baleshwar Yadav had disclosed the cause of death by fire -arm injury. He had also mentioned that the dead body was cut into pieces and cremated. Therefore in these backgrounds success of the prosecution depends upon the identification of the dead body of Sharda Devi. 10. The trial Court has relied upon the evidence of PW 9 who is the brother of Sharda Devi and had rushed to the maize field on getting information about the recovery of the dead body. PW 10 as noticed above is the Investigating Officer who on getting sanha recovered the dead body of a young woman from the maize field and sent the same for autopsy. It is also significant to mention that PW 9 had not only identified the dead body but had also gone to the place where the post - mortem was conducted. No attempt was made during the cross -examination to discredit his evidence save and except that he being the brother of Sharda Devi was interested. In my view it is really absurd to disbelieve such a witness. That apart it would appear from the medical evidence that there was no injury on the face of the deceased. There can be no difficulty in identification by own brother PW 9. Therefore in my view the trial Court rightly found the death of Sharda Devi homicidal. 11. Learned Counsel then contended that in absence of any evidence on record that. it was the appellants who had committed the murder of the deceased it would not be proper to hold them guilty. He further contended that in any view of the matter there is no allegation against the accused - persons that they had any object or intention to kill the deceased therefore it was not proper for the Trial Court to convict them under Secs. 302 read with 149, IPC. 12. In my view this aspect of the matter might have some bearing with respect to the case of the appellant Nos. 1 to 4 and 6 who are the family members. 302 read with 149, IPC. 12. In my view this aspect of the matter might have some bearing with respect to the case of the appellant Nos. 1 to 4 and 6 who are the family members. But - so far as appellant No. 5 Ramji Yadav is concerned against whom there is a specific allegation of torture and ill treatment, no such consideration can be given teamed Counsel is correct in his submission that from the First Information Report as well as the evidence on record, there appears no allegation that the remaining accused had also tortured the deceased or had any common intention to commit the murder of Sharda Devi, the logical conclusion of which would be that Ramji Yadav individually can be held guilty for the offence under Sec. 302, IPC. Therefore a slight correction, would have to be made to make him individually liable for the offence. 13. True it is, a case which solely depends on circumstantial evidence, it would be the duty of the Court to rely only on such circumstances from which the conclusion of guilt is to be drawn and should be fully established. In other words, the consideration should be such that it was the accused, who can only be held guilty. That apart, undisputedly, there must be a chain of evidence so as to leave no reasonable ground for the conclusion inconsistent with the innocence of the accused. As noticed above, instead of sending the information about the death of Sharda Devi to her parents and brothers, an attempt was made to hush up the matter with a story that, she died of cholera and ultimately cremated at the burning ghat. The real story came to light when the dead body of Sharda Devi was found in the maize field with penetrating wounds. The intention of the husband in the background of the specific evidence of strained relationship with the deceased and to make out a false case that she died of cholera and ultimately the dead body was cremated, is itself a circumstance to prove that, Sharda Devi was murdered in the house and thrown into the maize field. The intention of the husband in the background of the specific evidence of strained relationship with the deceased and to make out a false case that she died of cholera and ultimately the dead body was cremated, is itself a circumstance to prove that, Sharda Devi was murdered in the house and thrown into the maize field. It is a fact that the trial Court has disbelieved the case of firing, etc but, in view of large number of incised and stab injuries coupled with the allegation in the First Information Report that the dead body was cut at several places, it would not be proper to hold that, Sharda Devi died of cholera as alleged by the defence. 14. Therefore, taking into consideration the facts noticed above, I do not feel inclined to interfere with the order of conviction and sentence of appellant No. 5, Ramji Yadav. But, the remaining appellants having not been found guilty under Secs. 302/149, IPC, order of their conviction and sentence is set aside. 15. Before parting with the judgment, it would be relevant to mention that appellant No. 1, Khoshi Yadav and appellant No. 3, Mundrika Yadav died during the pendency of this appeal, therefore, this appeal on behalf of these two appellants had abated. However, this appeal with regard to appellant No. 2, Chhote Yadav, appellant No. 4, Dwarika Yadav and appellant No. 6, Ram Chander Yadav is allowed and the order of conviction and sentence passed against them is set aside. They are on bail. Therefore, they are discharged from the liability of their bail - bonds. The conviction of appellant No. 5, Ramji Yadav under Secs. 302/149, IPC requires slight correction and thus, he is made individually liable for the offence under Sec. 302, IPC. Therefore, this appeal on behalf of appellant No. 5, Ramji Yadav is dismissed as indicated above. He is on bail. His bail-bonds are cancelled and he is directed to surrender forthwith to serve the remaining sentence as ordered by the trial Court. The Court below is also directed to take immediate steps to take appellant Ramji Yadav into custody to serve the sentence. 16. This appeal is accordingly partly allowed and partly dismissed as indicated above. Indu Prabha Singh, J. 17 I agree.